Salmon-Minded Pesticide Study Can’t Pass Muster

     (CN) – Federal regulators failed to substantiate their findings that certain pesticides would harm Pacific salmon, the 4th Circuit ruled, siding with three chemical giants.
     The National Marine Fisheries Service had issued the faulty biological opinion as part of a settlement to complaints initiated by several environmental groups.
     In a 2001 case, the environmentalists accused the Environmental Protection Agency of having violated federal law by allowing the re-registration of 55 active ingredients in pesticides.
     Faced with a court order, the EPA initiated a study that concluded 37 active pesticide ingredients, including chlorpyrifos, diazinon and malathion, might affect specific salmonid species and their habitats.
     The Fisheries Service failed to issue its biological opinion on the matter until the environmentalists sued them as well in 2007.
     This opinion concluded that chlorpyrifos, diazinon and malathion would indeed jeopardize the continued existence of 28 Pacific salmonid species and impact 26 critical habitats.
     Three manufacturers of these products – Dow AgroSciences, Makhteshim Agan of North America and Chemnova – filed suit when the opinion became final. They named as defendants the Fisheries Service, its administrator, the Northwest Center for Alternatives to Pesticides, the Pacific Coast Federation of Fishermen’s Associations, the Institute for Fisheries Resources and Defenders of Wildlife
     Though the EPA had not yet issued a final order on the opinion, the 4th Circuit concluded in 2011 that the claims could go forward. Later that year, a federal judge in Greenbelt, Md., awarded summary judgment to the Fisheries Service.
     Again the 4th Circuit reversed, concluding that the biological opinion, or BiOp,, was arbitrary and capricious.
     “In short, even though the District Court recognized that the BiOp was infirm in two critical respects, it inappropriately overlooked the infirmity based not on the record, but on justifications provided by counsel during the judicial proceedings,” Judge Paul Niemeyer wrote for the three-member panel.
     The Fisheries Service had received much criticism for assuming that all wild “subyearling” juvenile salmon are exposed to lethal levels of pesticides continuously for a 96-hour period, according to the ruling.
     Niemeyer noted that even the District Court had concluded that the service provided “scant explanation” for this assumption. Nevertheless it forgave the absence of explanation, just as it did for the inadequately explained failure to vary pesticide buffers by channel depth and width.
     The lower court had held that the service rebutted the charges with a supplemental affidavit filed by a toxicologist, but the appellate panel found that this affidavit “impermissively expanded the agency’s record by providing justifications, explanations, and facts not relied on by the Fisheries Service in its BiOp.”
     “Here, where the Fisheries Service provided a 482-page BiOp, it can hardly be argued that the administrative record was so lacking in explanations as to necessitate reliance on a litigation affidavit in conducting judicial review,” Niemeyer wrote.
     Disregarding the supplemental affidavit, the record shows that the Fisheries Service failed to explain why the 96-hour exposure lab test reflected “real-world conditions,” according to the ruling. It also used outdated water monitoring data and failed to explain the “economic feasibility of the one-size-fits-all buffers,” the opinion states.
     “In sum, the Fisheries Service’s November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational,” Niemeyer wrote. “While the Service may have had good and satisfactory explanations for its choices, the BiOp did not explain them with sufficient clarity to enable us to review their reasonableness. For that reason, we conclude the BiOp is arbitrary and capricious.”
     The ruling vacated the biological opinion on the three pesticides and remanded the case back to district court.

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